CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, June 23, 2022

Saks on Juries and the Functional Equivalence Test

Michael J. Saks (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Life, Death, and Legacy of the Functional Equivalence Test on SSRN. Here is the abstract:
After deciding that none of the tools of constitutional interpretation could answer the question of how small a jury could be and remain acceptable to the Constitution, the Supreme Court invented the functional equivalence test. Any feature of trial juries was acceptable so long as the new feature did not degrade performance relative to the traditional twelve-person unanimous jury. Using that test, the Court approved juries as small as six. A mere eight years later, the justices abolished the new test. In so doing, the Court left in place two enduring harms. One was to weaken the integrity of the Court’s own jurisprudence: after abolishing the twelve-person jury, and then withdrawing the foundation on which the abolition stood, nothing but thin air and ipse dixit were left to support a momentous change in a venerated legal institution. The second harm is more practical and enduring: the smaller juries that remain with us are less reliable, more unpredictable, and more likely to produce aberrant verdicts.

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